United States v. Jose Diaz-Hernandez, 943 F.3d 1196

Defendant Jose Diaz-Hernandez is charged with being a removed alien found in the United States (8 U.S.C. § 1326) and previously served a 51‑month sentence for an earlier illegal reentry.
A magistrate judge released him on conditions including a $10,000 bond secured by a $2,500 cash deposit; the government appealed for pretrial detention.
Defense counsel argued an ICE immigration detainer would result in immigration custody if Diaz‑Hernandez were released, eliminating any risk of flight.
The district court declined to consider the ICE detainer’s prospective effect, found the $2,500 cash deposit inadequate given his history and lack of legal status, and concluded a $100,000–$150,000 bond might assure appearance but that Diaz‑Hernandez could not post such amounts.
The district court ordered detention without prejudice to reopening the hearing if Diaz‑Hernandez later showed ability to post a sufficient bond.
The Ninth Circuit affirmed, holding a district court may not consider an immigration detainer for or against a finding of flight risk and that the court properly refused to impose an unaffordable bond.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a district court may rely on an ICE immigration detainer when assessing flight risk under the Bail Reform Act	The government argued detention was warranted based on defendant's history, lack of status, and risk of nonappearance (detainer did not preclude risk)	Diaz‑Hernandez argued the ICE detainer would result in immigration custody if released and therefore negates any risk of flight	The court held a district court properly may not consider an immigration detainer — neither for nor against — in the § 3142(g) individualized flight‑risk analysis
Whether the district court erred by not imposing a high bond the court thought would assure appearance	The government maintained the court properly declined to impose an exorbitant bond because defendant had not shown ability to post it	Diaz‑Hernandez argued the court should have imposed the $100,000 bond the court said would ensure appearance	The court affirmed: imposing an unaffordable financial condition risks de facto detention in violation of § 3142(c)(2); the court may detain absent proof the defendant can meet a proposed bond and may reopen later if proof is produced

United States v. Santos‑Flores, 794 F.3d 1088 (9th Cir. 2015) (ICE detainer cannot be relied on to find no conditions will reasonably assure appearance)
United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985) (alienage is a factor but not dispositive in release analysis)
United States v. Townsend, 897 F.2d 989 (9th Cir. 1990) (doubts about pretrial release resolved in favor of the defendant)
United States v. Fidler, 419 F.3d 1026 (9th Cir. 2005) (prohibition on financial conditions that result in detention prevents de facto preventative detention)
United States v. Vasquez‑Benitez, 919 F.3d 546 (D.C. Cir. 2019) (distinguishing criminal pretrial detention under the Bail Reform Act from immigration detention under the INA)
United States v. Westbrook, 780 F.2d 1185 (5th Cir. 1986) (discussing the problem of imposing exorbitant bail to effect detention)